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What's the deal with the European Court of Justice

Theresa May, the British Prime Minister, has suggested pulling out of the European Court of Justice (ECJ) following Brexit. It is important for us to understand what the ECJ is, what the Court does, and why UK negotiators want out.

The European Court of Justice is the highest court overseeing European Union law. As a part of the Court of Justice of the European Union, it interprets EU law and ensures its equal application across all Member States.

This should not, as much of the media have, be confused with the European Convention of Human Rights and the European Court of Human Rights. From its creation by the Treaty of London in 1949, the UK was one of the first ten states to sign up to these non-EU bodies. The ECHR and its respective Court is part of the international treaty protecting human rights and fundamental freedoms and therefore remains independent from the EU and Brexit.

While EU negotiators believe that the court must have authority in settling post-Brexit, the UK government (although not in an official public statement) promised to remove the UK from the jurisdiction of the Luxembourg-based court.

By all accounts an arbitrary body will be needed to ensure ‘fair play’ during the negotiations. The question is whether the ECJ will maintain jurisdiction in a post-EU Britain. The EU supports the ECJ’s continued influence on the UK, both during and after the end of the Article 50 TFEU negotiation process. From settling disputes over money to protecting the rights of EU citizens living in Britain, the remaining 27 Member States hope to maintain the ECJ’s rule of law, standards of independence, and impartiality.

In the UK, Theresa May has insisted that the ECJ will lose its control over British affairs when the UK leaves in Spring 2019. As the Brexit negotiations begin, David Davis, the Secretary of State for Exiting the European Union, has echoed these statements. However, some EU ministers have stressed that there is no possibility of remaining in the Single Market and opting out of the ECJ.

At present, it is unclear which side will have to make the most concessions. Regardless of the outcome, it can be certain that both the UK and the EU will want to prioritise their citizens first.

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Comments (6)

I dont think anyone can be surprised at the general disaffection British people would have with a foreign court vetoing its own domestic laws. This was literally a direct affront to national sovereignty and is very easily an issue that I can understand anger arising from. It would be difficult to find citizens of any country that would look favourably on a foreign court influencing what laws exist over them. Everyone recognizes the necessity of a third party to oversee trade deals and ensure that both parties follow the agreed terms equally but it would be difficult for British people to accept that the EU court of justice is capable of being this impartial third party. From my point of view it seems a little ridiculous for the ECJ to expect to have any role in the UK's future in a post BREXIT world

Thanks for your response to the post Lev! Yes, I would agree that anger over the ECJ's rulings over national legislation is understandable. However, if these are issues pertaining to EU law that governs all EU Member States, the ECJ seems to be a sensible way to ensure that there is a uniform and fair application of the law throughout. Of course, with Brexit and in the context of having to negotiate UK-EU deals in the future (whether it may be trade, citizen's rights, divorce payments etc.), if it were not the ECJ overlooking these legislative measures, is there an alternative system in which you think may be better suited as the arbiter of these issues?

I completely understand the concern about a foreign court ruling over domestic issues, however there are particular issues where it is certainly better for a foreign court to jump in. For example: wouldn't it be best for the people of Syria or other war-torn countries to have a court determine definitively that their government's actions are illegal and punishable? Of course this scenario sounds extreme, but I bring it up because there have been cases like Zambrano (2011) where the Court of Justice 'meddled' with domestic decisions and it was for the better of society.

Anyway, of course there are worries about an external court deciding what is "justice" but an international/supranational court can ensure that all countries abide by certain standards that are much more important than 'sovereignty' for countries to do as they wish. It might be worth checking this out: C. Sawyer, ‘Not Every Child Matters: the expulsion of British citizens from the UK’, (2006) 14 International Journal of Children's Rights 157–185.

There's also the fact that, even in the ‘hardest’ possible Brexit scenario, ECJ case law will still matter because for UK businesses to sell their products and services in the EU single market they will have to respect the standards set by the ECJ and will have to remain limited by the ECJ rulings if the UK wants to trade with EU states in the future.

I understand the viewpoint the UK does not want the European Court of Justice (ECJ) to rule over their domestic issues. Nonetheless, I think the ECJ would mainly have the role of settling disputes regarding relations between the UK and the EU, as it has done in the past and will continue to do if the UK wants to remain in the Single Market. It won't have an impact on local, domestic and internal politics if they have no relation to the EU. GIven the special circumstances that the UK wants to remain in the Single Market yet leave the EU, it is necessary that they continue abiding to the rules and regulations, as do all of the other states. This then requires an overaching, independent and centralized monitoring and enforcement mechanism, the ECJ. Responding to another comment above, I don't think that the ECJ having certain influences and control in the UK would lead to the demise of its national sovereignty. Sovereignty would remain in the UK, as it does in all other states, they would just need to comply with the rules if they want to remain part of the market. A similar judicial body is the International Court of Justice (ICJ) in the United Nations (UN). The ICJ does not infringe upon the sovereignty of the member states of the UN, it is solely needed to ensure that nations follow the rules they have agreed upon.

Over the years, the ECJ has made various rulings which affect the status of EU law over domestic law in the UK, including direct effect and supremacy of EU law which prima facie goes against the idea of Parliamentary sovereignty. Therefore, the idea that the ECJ infringes UK sovereignty by interfering with the application of domestic legislation has never sat well with the public, and with Brexit it is unsurprising that one of the biggest demands is that the influence of the ECJ over the UK be removed.